Full Judgment Text & Judicial Ruling

2016 Y L R Note 68 [Lahore] Before Abdul Sami Khan, J KAMAR SAJJAD alias KAMAR SHAHZAD---Appellant Versus The STATE---Respondent Criminal Appeals Nos.1377, 287-J of 2008 and Criminal Revision No.764 of 2008, heard on 22nd October, 2015. (a) Penal Code (XLV of 1860)---- ----S. 302--- Qatl-i-amd--- Appreciation of evidence---Conflict/contradictions between FIR, postmortem report and ocular account as to time of death and reporting to police---Interested and chance witnesses, requirements as to reliance---Dishonest improvements admittedly made in FIR---Inquest Report lacked names of eye-witnesses---Presumption as to presence of eye-witnesses at crime scene---Co-accused acquitted on same set of evidence---Requirement of corroboration for conviction---Previous criminal record of deceased, existence of---False implication, probability of---Report of Forensic Science Laboratory regarding crime weapon, absence of---Recovery of pistol, effect of---Motive introduced during trial, proof of---Benefit of doubt---Accused were alleged to have murdered nephew of complainant through firearm injuries---Trial court sentenced the accused to undergo life imprisonment----Conflict between the timing regarding death of the deceased mentioned in FIR and postmortem report cast doubt regarding time of reporting the crime to police and registration of FIR, and the same led court to come to conclusion that the FIR had not been registered at the time mentioned therein---Alleged incident was night time occurrence, when identity of the accused was highly doubtful---Eye-witnesses had claimed that they had seen the accused dragging and making firing at the deceased in the light of motorcycle, but during their deposition, they had categorically stated that the light of motorcycle flashed on them while they had seen the occurrence---When headlight of motorcycle was flashed on face of a person, it was impossible for him to see the acts committed in the surroundings, what to talk about witnessing the firing by three accused persons, the locale of injuries and the specification of weapons of offence---Complainant had alleged that he had allowed the deceased to go with the accused, as he was their relative, but prosecution could not explain as to why the complainant and eye-witnesses had followed them without any cogent reason or any element of suspicion---Said particular fact on one hand created serious doubt in prosecution story as set forth in the FIR, and, on the other hand, the same had also led to an impression that the eye-witnesses were not present at the scene of crime at the relevant time---Ocular account of the case had been furnished by interested witnesses, as complainant was maternal uncle of the deceased and prosecution eye-witness was his real brother---High Court considered the complainant as chance witness, whose deposition had not been supported or substantiated by any independent prosecution witness---Complainant, during cross-examination, had admitted that he had made improvements in the FIR just to strengthen the prosecution story---Dishonest improvements made by complainant forbade the court to believe his evidence in letter and spirit---Evidence adduced by interested and chance witnesses had to be scrutinized with great care and caution, and independent impartial testimony was required to believe them which was missing in the present case---Investigating Officer had not mentioned the names of any of the eye-witnesses in the Inquest Report prepared by him, which fact also falsified the presence of the eye-witnesses at the spot at relevant time---If the names of the eye-witnesses were not mentioned in the Inquest Report, that meant that they were not present at the spot and had not seen the occurrence---Co-accused had been acquitted by Trial Court on the same set of evidence, thus, the evidence to the extent of present accused could not be relied upon without strong independent corroboration, which was necessary in like cases---Deceased himself was involved in numerous criminal cases of heinous nature; thus, probability could not be ruled out of consideration that some enemy of the deceased had committed his murder and the accused persons had been falsely involved in the case---Majority of accused involved in present case by complainant had been acquitted of the charge, which led High Court to believe that evidence produced by prosecution was not worthy of credence---False implication of present accused could not be ruled out of consideration---Contradiction also existed between medical evidence and the ocular account regarding time of death---Medical evidence did not support the ocular account---During investigation, two pistols of .30 bore were alleged to have been recovered from the accused, but no report of Forensic Science Laboratory was available with the prosecution to establish that those pistols were the same which had been used by the accused during occurrence---Said recovery, in absence of Forensic Science Laboratory report, was inconsequential---Complainant had not mentioned any motive in the FIR and had introduced the same during trial---Prosecution had failed to prove the motive, which had been introduced at belated stage just to strengthen the prosecution case---Motive had not been attributed to present accused---Motive had not provided support to the ocular account---High Court, extending benefit of doubt, acquitted all accused persons---Appeal was accepted accordingly. [Paras. 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the judgment] Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Amin Ali and another v. The State 2011 SCMR 323 and Muhammad Sharif and another v. The State 1997 SCMR 866 rel. (b) Penal Code (XLV of 1860)--- ----S. 302--- Qatl-i-amd--- Death sentence---Quantum of proof---Evidence produced by the prosecution against the accused persons should be so strong and solid that it should start right from the toe of the deceased on one hand and the same should encircle a dense grip around the neck of the accused on the other hand. [Para. 15 of the judgment] (c) Criminal trial--- ----Benefit of doubt----Scope---If any doubt which has occurred in the prosecution case, which is sufficient to demolish the whole structure of evidence, the benefit of the doubt must go to the accused, especially, when the same had been built on the basis of feeble and shaky evidence. [Para. 15 of the judgment] (d) Criminal trial---- ----Benefit of doubt----Scope---Not many circumstances creating doubt in the prosecution case are required, but only one circumstance creating doubt is enough to acquit the accused. [Para. 15 of the judgment] (e) Criminal trial---- ----Motive, proof of----When a particular motive is introduced, it is the duty of the prosecution to prove the same.[Para. 14 of the judgment] (f) Criminal trial---- ----Medical evidence----Scope---Medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used during occurrence, etc., but medical evidence itself does not provide any corroboration regarding identity of the accused person for proving his culpability. [Para. 13 of the judgment] Muhammad Sharif and another v. The State 1997 SCMR 866 rel. (g) Criminal trial---- ----Evidence---Evidence of a witness who makes dishonest improvement and omission in order to bring his statement in line with the circumstances of case loses its credibility. [Para. 10 of the judgment] Aurangzeb Marl for Appellant with Appellant in person. Imran Arif Ranjha for Tanveer Ahmad Appellant. Irfan Zia, Deputy Prosecutor General for the State. Nisar Ahmad Baig for the Complainant. Date of hearing: 22nd October, 2015. JUDGMENT ABDUL SAMI KHAN, J.---Through this appeal under section 410, Cr.P.C. Kamar Sajjad alias Kamar Shahzad and Tanveer Ahmad appellants have challenged the vires of the judgment dated 30.10.2008 handed down by the learned Additional Sessions Judge, Kharian through which the appellants were convicted under section 302(b), P.P.C. and they were sentenced to undergo life imprisonment each along with compensation amount to Rs. 500,000/- each under section 544-A, Cr.P.C. for the murder of Asjad Mahmood deceased or in default of payment of fine to further undergo simple imprisonment for six months each. The appellants have filed the above captioned appeals against their convictions and sentences whereas the complainant has filed Criminal Revision No. 764 of 2008 for enhancement of sentence of the appellants from life to death. I propose to decide all these matter together through this single judgment. 2. According to the prosecution story unfolded in the FIR the complainant was resident of mouza Kunjial. On 20.05.2005 he along with his son namely Muhammad Arif was present in the house of his brother namely Muhammad Sharif as guests at Kharian. At about 11.00 pm in the night Kamar Shahzad rang bell of the house and called Asjad Mehmood his nephew out of house. Asjad Mehmood, nephew of the complainant went out of the house and Yasir Mahmood as well as Muhammad Arif, son of the complainant also followed him. After listening the voice of woman the complainant also came out of the house. He saw that Kamar Shahzad, Tanveer Ahmad, Muhammad Younis and three unknown persons to whom the complainant claimed to be recognized if they appear before him were standing in the street. They stated that they wanted to take Asjad Mahmood with them due to certain important work. As Kamar Shahzad was relative of the complainant party, therefore, allow Asjad Mahmood to go with them. Asjad Mahmood also took his mobile and motorcycle with him. After sometimes the complainant, his son Muhammad Arif and brother of Asjad Mahmood namely Yasir Mahmood also followed them in a motorcycle and when at about 1.30 am they reached at under-constructed road they saw in the headlight of motorcycle that Kamar Shahzad, Tanveer A hmad and Muhammad Younis, all armed with pistol .30 bore along with three unknown persons were dragging Asjad Mahmood who tried to rescue him from them and tried to run away on his motorcycle but Kamar Shahzad made fire from his pistol which landed at the abdomen of Asjad Mahmood. Second fire was made by Tanveer Ahmad which landed on the joint of right leg and belly of Asjad Mahmood. Third fire was made by Muhammad Younis which landed on the left calf of Asjad Mahmood. Asjad Mahmood fell down on the ground after receiving fire-shot injuries. All the accused person also made firing at Asjad Mahmood in fallen position which he sustained on left thigh, right leg, left thigh and back. The accused person threatened and forbade the complainant party to come near otherwise they would also be done to death. The complainant due to fear of life did not go near to Asjad Mahmood and accused persons decamped therefrom. While leaving the place of occurrence the accused persons also took mobile and motorcycle of Asjad Mahmood with them. It is stated that the accused has committed the murder of Asjad Mahmood at the abetment of Muhammad Siddique and Muhammad Afzaal. Asjad Mahmood succumbed to his injuries and died at the spot. On the application of Hakim Khan complainant FIR No. 276/05, dated 21.05.2005 had been registered at Police Station Sadar, Kharian in respect of offences under sections 302/109/148/149, P.P.C. 3. The prosecution in order to prove its case against the appellant examined as many as fourteen witnesses before the learned trial court. The ocular account in this case had been furnished by Hakim Khan, complainant (PW 9) and Yasir Mahmood (PW 10). The medical evidence had been provided by Dr. Farooq Ahmad Bungash, Medical Officer, Rural Health Centre, Pindi Sultanpur (P.W.2) conducted the Post-mortem Examination on the deadbody of Asjad Mahmood deceased. The investigation in this case was conducted by Muhammad Nawaz, Inspector who appeared before the learned trial court as (PW 13) and deposed about various steps taken by him during the investigation of this case. Thereafter investigation was entrusted to Muhammad Aslam, SI (PW 12). Kaleem Anjum, FC (PW 6) has furnished evidence with regard to recovery of pistol 30 bore (P-4) from Kamar Shahzad appellant which has been taken into possession vide recovery memo Ex. PH. He has also stated about recovery of pistol .30 bore (P-5) from Tanveer Ahmad appellant. Rest of the evidence produced by the prosecution is more or less formal in nature. 4. In their statements recorded under section 342, Cr.P.C. the appellants had controverted the allegations leveled against them by the prosecution and they had also professed their innocence. They have not opted to make statement on oath under section 340(2), Cr.P.C. inasmuch as have not produced any evidence in their defence. 5. Upon completion of the trial the learned trial court found the case against the appellants to have been proved beyond reasonable shadow of doubt and, thus, convicted and sentenced them as mentioned and detailed above whereas after finding the case of the prosecution to be doubtful the learned trial court acquitted co-accused of the appellant namely Muhammad Arif of the charge. Hence, the above said appeal and revision petition before this Court. 6. Learned counsel for the appellants submit that the prosecution has miserably failed to prove the guilt of the appellants to the hilt from the available evidence. On the other hand learned Deputy Prosecutor General contends that the prosecution has amply proved the case against the appellants beyond any shadow of reasonable doubt. The learned counsel for the complainant has added that as the case of the prosecution has been proved so the appellants should have been convicted and sentenced for capital punishment of death instead of life imprisonment each. 7. I have heard the learned counsel for the parties at length, have given my anxious consideration to their arguments and have also scanned the record with their able assistance. 8. A perusal of FIR shows that the occurrence in this case has taken place during intervening night of 20/21.05.2005 at 1.30 am and the matter was reported to the police at 8.30 am whereas the FIR has been chalked out at 8.45 pm on the same day. A perusal of Postmortem Examination Report (Ex. PA) of the deadbody shows that the time of death has been written as 7.00 am on 21.05.2005 whereas according to the contents of the FIR the deceased had been fired upon by the culprits at 1.30 am who succumbed to his injuries and died as the spot. This glaring conflict between the timing regarding the death of the deceased obviously caste doubt regarding time of reporting crime to the police and registration of the FIR. It seems that the complainant has managed to stop case-diary at a time when he came to know about death of his nephew and thereafter with connivance of the police he has reported the matter at a time as given in the FIR. Thus, taking into consideration the above mentioned peculiar aspect of the matter this Court comes to a definite conclusion that the FIR was not registered at the time mentioned therein. 9. It has been observed by this Court that to prove the ocular account in this case the prosecution has kept in its fold two eye-witnesses, i.e. Hakim Khan, complainant (PW 9) and Yasir Mahmood (PW 10). Admittedly it was a night time occurrence wherein the identity of the appellants was highly doubtful as both the above mentioned eye-witnesses claimed that they have seen the appellants dragging and making firing at the deceased in the light of motorcycle but during their deposition before the learned trial court both the eye-witnesses have categorically stated that light of the motorcycle flashed on them and they have seen the occurrence. It is important to point out here that when headlight of motorcycle is flashed on the face of a person, it is impossible for the eye-witnesses to see/watch the acts committed in the surroundings what to talk about witnessing the firing by three accused persons, the locale of injuries and the specification of weapons of offence. It is alleged by the complainant himself in the FIR that as Qamar Sajjad alias Qamar Shahzad appellant was their relative so he allowed his deceased nephew namely Asjad Mahmood to go with them but it is not understandable that when he himself allowed the deceased to go with the appellants then why he along with other eye-witnesses followed them without any cogent reason or any element of suspicion. If he has smelled any apprehension of bad intention of the appellants towards the deceased he might not have allowed him to accompany them in the first instance nor any plausible explanation has been given by the eye-witnesses during trial in this regard. Even the reason why the complainant and others followed the deceased and the appellant has not been mentioned in the FIR. This particular fact at one hand creates serious doubt in the prosecution story set forth in the FIR and on the other hand it has also lead to an impression that the eye-witnesses were not present at the scene of crime at relevant time. 10. Admittedly Hakim Khan, complainant (PW 9) is maternal uncle of the deceased whereas Yasir Mahmood (PW10) is real brother of the deceased so the ocular account has been furnished in this case by interest witnesses. Moreover, according to the narration of the FIR Hakim Khan, complainant (PW 9) has by chance come to the house of his brother along with his son Muhammad Arif who has not been produced as eye-witness. So he is considered by this Court as chance witness whose deposition has not been supported or substantiated by any independent prosecution witness so as to thrown a worthy reliance upon him. It is significant to point out here that during his cross-examination he has admitted the suggestion of defence as correct that he has made improvement in Ex. PO just to strengthen the prosecution story. All this shows that this witness has made glaring improvements in his statement while appearing before the learned trial court and in this way he has lost confidence of this Court upon him. The dishonest improvements made by him forbade this Court to believe his evidence in letter and spirit. It is settled law that evidence of a witness who made dishonest improvement and omission in order to bring his statement in line with the circumstances of case lost its credibility. Reliance in this regard can be placed on the cases of Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812) and Amin Ali and another v. The State (2011 SCMR 323). Similarly, law is also quite settled on the point that evidence adduced by interested and chance witnesses has to be scrutinized with great care and caution and an independent and impartial testimony is required to believe them which is missing in this case. 11. There is yet another important fact in this case that the investigating officer has not mentioned the name of any of the eye-witness in the Inquest Report (Ex. PS) prepared by him which fact also falsified the presence of the eye-witnesses at the spot at relevant time. Had they been present at the scene of crime at relevant time their names should have been mentioned by the investigating officer in the inquest report. Law is also settled on the point that if the names of eye-witnesses are not mentioned in the Inquest Report it means that they were not present at the spot and they have not seen the occurrence. It is also worth mentioning here that on the same set of evidence the learned trial court has acquitted co-accused of the appellants namely Muhammad Arif so the same set of evidence to the extent of appellants cannot be relied upon without strong independent corroboration which is necessary in such like cases. A perusal of evidence adduced before the learned trial court by Naseer Hussain also shows that the deceased himself was also involved in numerous criminal cases of heinous nature, so possibility cannot be ruled out of consideration that some enemy of the deceased has committed his murder and the appellants have falsely been involved in this case. The discussion made above leads this Court to conclude that the eye-witnesses remained unable to prove the ocular account in this case. 12. There are certain other factors which renders the case of the prosecution to be doubtful. In this case as many as six accused persons were involved by the complainant out of whom two accused person namely Muhammad Siddique and Muhammad Afzal have been acquitted by the learned trial court on the basis of compromise, even the evidence qua the culpability of Arif co-accused is also disbelieved especially in the circumstances when evidence of the complainant (PW 9) is not above-board who have made dishonest improvement to bring the case of prosecution in line with the circumstances of the case. This fact also shows that majority of accused involved in this case by the complainant have been acquitted of the charge and this peculiar feature leads this Court to conclude that evidence produced by the prosecution is not worthy of credence. In the backdrop of above discussion false implication of the appellants in this case cannot be ruled out of consideration. 13. The medical evidence in this case has been provided by Dr. Farooq Ahmad (PW 2) who has categorically mentioned the time of death as 7.00 am in Post-mortem Examination Report (Ex. PA) on 21.05.2005 which fact is totally in contradict with the time mentioned in the FIR by the complainant, thus, there is a contradiction with medical evidence and the ocular account. Even otherwise medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used during the occurrence, etc. but medical evidence itself does not provide any corroboration qua the identity of the accused person for proving his culpability. Reliance in this regard can be placed on the case of Muhammad Sharif and another v. The State (1997 SCMR 866). Therefore, the medical evidence in this case does not support the ocular account. 14. During the investigation of this case two pistols of .30 bore alleged to have been recovered from the appellants yet the fact remains that there is no report of Forensic Science Laboratory is available with the prosecution to establish that these pistols were the same which were used by the appellants during occurrence, therefore, in absence of report of Forensic Science Laboratory the recovery effected in this case is inconsequential. Similarly, as stated above the complainant has not mentioned any motive in the FIR rather he has introduced motive while appearing before the learned trial court to the effect that there has been theft in the house of uncle of Qamar Shahzad appellant who has alleged that eithter Asjad Mehmood had himself committed this theft or he had got it committed by someone else. Law is quite settled on the point that when a particular motive is introduced it is the duty of the prosecution to prove the same but during trial the prosecution failed to prove motive which has been introduced at belated stage just to strengthen the prosecution case from confidence inspiring evidence. Even otherwise motive is not attributed to Tanveer Ahmad appellant. Thus, the motive has not provided support to the ocular account in this case. 15. I may observe here that in a murder case carrying death sentence, the evidence produced by the prosecution against the accused persons should be so strong and solid that it should start right from the toe of the deceased on one hand and the same should encircle a dense grip around the neck of the accused on the other hand if any doubt which occurred in the prosecution's case sufficient to demolish the whole structure of evidence and the benefit of doubt must go to the accused especially when the same has been built on the basis of feeble and shaky evidence. It is also settled law that not many circumstances creating doubt in the prosecution case are required but only one circumstance creating doubt in the prosecution case is enough to acquit the accused. Reliance can easily be placed upon 2009 SCMR 230 wherein the Hon'ble Supreme Court has held as under:-- "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts----Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right." Similar view was affirmed in the cases of Tariq Pervez v. The State (1995 SCMR 1345) and Muhammad Akram v. The State (2009 SCMR 320). It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person. 16. For what has been discussed above the prosecution has failed to prove its case against the appellants beyond any reasonable shadow of doubt, so by extending benefit of doubt to the appellants,…

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